Pushback against wrongs in Bill on transgender rights

Insight, Dec '17The campaign against the regressive Transgender Persons (Protection of Rights) Bill 2016 is not just an unprecedented mobilization of trans communities to resist the exclusionary nature of our legal system, but also a major step forward for transfeminist politics says Sayantan Datta

The last two weeks, and many months before them, have been phenomenal for me. It has been a rich, diverse and transgressive political conglomeration of transgender, Hijra, Kothi, intersex and other genderqueer and gender non-conforming persons in the country, an almost never before visibility of collectivization and mobilization of those who have been erased from the mainstream narrative of politics. But this powerful performance of solidarity is a resistance against the draconian Transgender Persons (Protection of Rights) Bill 2016, waiting to be tabled soon in the winter session of the Parliament.

The Bill, a nightmare that just might get legitimized, legalised and intricately (forcefully) woven into our lives, is a ticking bomb that results from the tradition of historic systemic and systematic violence that transgender persons are subject to. This system of violence, propounded and propagated by colonialism, is found in the legal structures that exist. The Criminal Tribes Act was repealed during the time of Independence, but legislations and jurisprudence that draw, depend and are on the lines of the same exist in the books and are regularly used to criminalize, especially transgender persons. This vehicle of colonialization exists in Section 268 of the Indian Penal Act that deals with 'public nuisance' and several laws that prevent begging in various states of India.

This system of violence is also found in legal structures that do not exist – transgender persons had almost no legal identification beyond being mere criminals before April 2014 when the National Legal Services Authority Vs. Union of India and Others (NALSA) verdict was given by the Honourable Supreme Court of India.

Vyjayanti Vasanta Mogli, a trans woman and activist based in Hyderabad, talks about how the judgement empowered her, “NALSA Vs. Union of India empowered me to assert my gender identity just the way I identify – with or without cosmetic, medical and / or surgical procedures. It gave me a place to stand and claim my rights under the Constitution, engage, and call out as needed. In my view, it also enabled the transgender community to invoke the constitutional promises to all Indians, join hands and heads and collectivize and form a mammoth opposition to draconian, regressive and repressive policies, statutes and even Bills that aren’t yet passed into laws.”

Resonating with Vyjayanti, the feelings of empowerment that this judgement granted come from the need to be recognized, legally and socially. This judgement, which came after revolutionary work done by a huge number of people, and certainly a lot of trauma that was woven into the narrative of our jurisprudence (legal system), was a little breather that at least empowered transgender persons with the right to self-identification. It also very strongly advised the Parliament to start working on socio-economic empowerment of transgender persons through reservations.

The NALSA verdict remains important in more ways than one – first, it illegalised the discrimination that transgender persons were subject to through a biologically deterministic lens, that is, it took away the construction of gender from biology and acknowledged the complete right of the individual to acknowledge their own gender.

The verdict was also the beginning of an attack on the legal notion of the gender binary, as it created a ‘third gender’ column to begin with. Though this certainly has its own critique, with various diverse identities different from each other being clubbed into one, and also the result of Anglophonic activism deleting the loci of vernacular identities in the phrasing of the verdict, it certainly was also a beginning into the stories of engagement of prior inaccessible legal structures with some of the narratives of transgender persons. A majority of these structures however still remain inaccessible to a lot of transgender persons, Hijras, Kothis and genderqueer / non-conforming persons, but the Bill in question is a blow to all efforts being made to bridge the question(s) of accessibilities. If it becomes an Act, it will also override the NALSA judgement and undo whatever good it brought about.

These legal histories of the innumerable battles that transgender persons have fought have been discussed in various fora already. In this article, as a relatively new warrior in this everlasting battle between my marginalization and oppression and how the jurisprudence looks at them, I argue that these struggles are part of a discourse in the grand scale of queer intersectional transfeminist politics.

I strongly hold the position that this is a moment of subversion and transgression in the way transfeminism is being performed. The resistance against the Bill created by a ministry (the Ministry of Social Justice & Empowerment) to be handed over through legal corridors to the ones it is going to affect the most without any consultation with them, is a growing picture of transgender persons reclaiming their voices and spaces in activism and politics (which are rightfully theirs).

Understanding transfeminism

Emi Koyama, the author of The Transfeminist Manifesto, writes, “Transfeminism is not about taking over existing feminist institutions. Instead, it extends and advances feminism as a whole through our own liberation and coalition work with all others. It stands up for trans and non-trans women alike, and asks non-trans women to stand up for trans women in return. Transfeminism embodies feminist coalition politics in which women from different backgrounds stand up for each other, because if we do not stand for each other, nobody will.”

With this quote in mind, I think, and strongly feel as a transfeminine gender fluid queer person myself, that the resistance that has developed against this draconian Bill is a huge leap for transfeminist politics in the context of jurisprudence. Here, with certain risk, I also humbly accept that I have my own privileges, some of which allow me to theorize in the comfort of my bedroom. This theorization is a tiny thing as compared to immense strength that the ones with much lesser privileges than me have shown, and this movement shall enrich itself only and only with their contributions, involvement, and leadership.

This quote embodies the lived realities of this movement. I wonder when else have so many transgender persons, including but not limited to trans women, trans men, Hijras, Kothis and intersex persons, along with other genderqueer / non-conforming individuals have come forth to claim their right to not just their own identities, but also to their own jurisprudence.

The ‘trans’ identity, though an umbrella term, is extremely diverse. Just like the diversity of the identities, the politics that surround these identities have often been different for different persons, different communities, sometimes even divisive and fractured. This particular moment of resistance is of huge importance from the transfeminist point of view, because this issue has brought together these fractured positions on the same platform, with people contributing to the development of this ‘coalition’ through their own capabilities. This coalition doesn’t intend to erase the diversities, but rather uses the diversities intricately woven into a free-flowing yet strong narrative and positions it in a conundrum of visibilities.

This has become one more intriguing way of doing transfeminist politics – such a nuance of visibilities demystifies trans identities, which have for long been either exoticised or suspended (into a social exile). This demystification becomes important in such demands of reclamation, where we don’t just exist on an ideological social ground of marginalization, but move beyond the margins. To push for occupying the social centre or at least a space within it is a radical way of probably dismantling the social centre in itself, and one way to achieve this is to manipulate the anxieties of the ones who occupy the social centre. Not only does this become a push for radical transgressions, but opens up huge possibilities in re-imagining how we engage with jurisprudence in a largely neo-liberal and capitalistic society.

This ongoing resistance is a queer moment which holds a lot of promise of liberation. In these queer moments, the onus comes on queer-transgender persons to articulate how we have been excluded systematically, and develop a way of negotiation where the brunt of adjustment doesn’t fall on the already oppressed. While the government continues to bear the divide-and-rule tactics from its colonial forefathers, it is the lived realities of this movement and many others that show a mirror to the government and its hypocrisies.

Such resistances can only show a way forward – there can be no conclusion to this, only a vast expansive stretch that culminates into the necessities of challenging established structures of exclusion.

About the main graphic: Banner prepared for a major protest event held against the Transgender Rights (Protection of Persons) Bill 2016 at Sansad Marg in Delhi on December 17, 2017. Graphic credit: All India Transgender Community – Trans Resistance Campaign

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